Being right and getting right: Principles of civil procedure
The claimant decides whether or not to sue. The claimant determines the subject matter of the lawsuit, i.e. (1) what he or she is claiming (2) from whom (3) and on what grounds.
The claimant asserts his claim (what) against the defendant (by whom) in his requests, and the defendant also makes his requests (usually for the claim to be dismissed). The court is generally bound by these requests (except where the court has to decide certain issues ex officio, e.g. in matters relating to children). The court may not award the claimant more than he or she asks for in the requests and no less than the defendant acknowledges. This is part of the so-called principle of party disposition (“Dispositionsmaxime”).
As a rule, one party bears the burden of proof for the relevant facts (for what reason), i.e. this party has to allege all relevant facts and prove them. In principle, the party who derives rights from an allegation bears the burden of proof. This will usually (but not always) be the claimant.
The allegations regarding the facts of the case must be presented in detail and comprehensively, i.e. they must be "substantiated". The claimant must bear in mind that he is explaining the facts to the court and not to the other party. This also means that nothing can be assumed to be known and everything must be explained - even circumstances which are well known to the parties. A successful statement of claim should enable the court to fully understand what has happened without having to ask for further explanations. As a rule, the court is not obliged to request such explanations (so-called "principle of party presentation" [“Verhandlungsmaxime”]; the exception again: if the court has to clarify the facts ex officio, e.g. in matters relating to children). If the other party disputes these allegations, the party bearing the burden of proof must provide legally sufficient evidence for their allegations.
In contrast to the facts of the case, the parties do not have to explain the law to the court ("iura novit curia"): A brief to the court therefore does not have to contain any explanations of the legal position. Nevertheless, precise knowledge of the law helps in structuring and organising a brief: Only someone who knows the law can reliably assess which elements of the facts are really decisive and need to be presented and proven to the court. Presenting the own legal explanations can also help to steer the court in the "right direction" when rendering a judgement.
These principles explain a well-known legal "bon mot": "Being right does not automatically mean having justice on your side". If a party fails to make the correct requests or to assert, dispute or prove a legally relevant fact in the proceedings in a timely and legally sufficient manner, this may result in the loss of otherwise existing legal claims.
Different types of procedures
Swiss civil procedure law provides for various types of proceedings. As a rule, conciliation proceedings are mandatory and must be conducted (there are certain exceptions, e.g. in the case of disputes relating to debt collection or commercial law, or in matters that are to be dealt with in a summary procedure). The conciliation procedure takes place before a conciliation authority appointed by the cantons. The conciliation authority is not a court and has very limited decision-making powers. The aim of the conciliation authority is to reach an agreement between the parties.
After the conciliation procedure, the claimant receives a so-called "authorisation to sue" (“Klagebewilligung”), which allows him to bring his claim before the competent court (usually within three months).
If the amount in dispute exceeds CHF 30’000 and if no special type of procedure is applicable to the dispute, the proceedings are conducted in accordance with the rules of an ordinary procedure (“ordentliches Verfahren”). This type of procedure has the highest formal requirements. The statements of claim and defence (respectively) must be submitted in writing. The second round of briefs (reply and rejoinder) may be made orally or in writing, at the discretion of the court. A main hearing, including taking evidence, is also mandatory. In addition, the court can always invite the parties to an instruction hearing in which settlement discussions are held.
If the relevant legal requirements are met, the case will be conducted in a simplified procedure (“vereinfachtes Verfahren”). In this case, the requirements for the parties are lower than in the ordinary procedure. The simplified procedure is primarily (but not exclusively) intended for disputes in which the amount in dispute does not exceed CHF 30’000. In this procedure, the claimant can file a claim without stating the facts of the dispute. In this case, as a first step, it is sufficient for the claimant to submit his request, name the parties, state the nature of the dispute and submit the available evidence. It should be noted, however, that even this does not exempt the claimant from the above-mentioned obligations: If the facts of the case are not set out in detail in writing, this must be done orally at the latest during the hearing. If the statement of claim is submitted without written reasoning, the proceedings may even be conducted entirely orally. However, depending on the circumstances, the court may also conduct a simplified written procedure with two exchanges of written briefs. Also in this procedure, the court may summon the parties to an oral instruction hearing.
The summary procedure (“summarisches Verfahren”) is characterised by its speed and the fact that, in principle, only documents are admissible as evidence. The court may dispense with a hearing and decide solely on the basis of the filed documents. A summary procedure is used in certain cases specified by law (e.g. judicial prohibitions or preliminary measures).
If the defendant fails to respond to the claim within the set deadline, this can have serious legal consequences – irrespective of the type of the procedure. In this case, the court will assume that the defendant does not contest the facts presented by the claimant and therefore essentially accepts them. If, in this initial situation, the dispute is ready for judgment, the court will issue a judgment (a so-called default judgment). Otherwise (e.g. if the plaintiff has obviously not presented the facts in sufficient detail or if there are serious doubts as to the accuracy of an alleged fact), the court will summon the parties to a hearing.
Court language and conduct of hearings
At cantonal level, proceedings are conducted in the official language of the canton. The revised Code of Civil Procedure will come into force on 1 January 2025 and will simplify matters. English will be allowed as an additional language of proceedings in international commercial disputes, provided that all parties agree and the cantons provide for the possibility of international commercial courts.
Oral hearings will generally be held before the court. Under the new law, the court will be able to hold hearings by video transmission, unless the law provides otherwise. This requires the consent of all parties.
The cost of the process
Under current law, the court may require the claimant to make an advance payment of the total estimated costs of the proceedings. In current practice, the courts consistently demand this, which means that the plaintiff has to pay substantial advances on costs. According to the revised Code of Civil Procedure, which will come into force on 1 January 2025, advance payments will now generally amount to no more than half of the estimated total costs of the proceedings. This development is to be welcomed, as it lowers the hurdles to enforce legal claims.
In addition to the advance on court costs, the plaintiff may be required to provide a deposit for the other party's compensation in the event that he or she loses the case before the court hears the claim. In the course of the proceedings, advance payments may also have to be made for the costs of taking evidence (e.g. expert reports).
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